Jensen v. Commissioner of Social Security

Filing 21

ORDER signed by Magistrate Judge Kendall J. Newman on 6/20/2017 DENYING 19 Motion for Summary Judgment and GRANTING 20 Cross-Motion for Summary Judgment. The final decision of the Commissioner is AFFIRMED. CASE CLOSED. (Donati, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN JENSEN 12 Plaintiff, 13 14 15 No. 2:16-cv-1428-KJN v. ORDER COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 Plaintiff Kevin Jensen seeks judicial review of a final decision by the Commissioner of 18 19 Social Security (“Commissioner”) denying plaintiff’s application for Disability Insurance 20 Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI, 21 respectively, of the Social Security Act (“Act”).1 In his motion for summary judgment, plaintiff 22 principally contends that the Commissioner erred by finding that plaintiff was not disabled from 23 February 15, 2009, plaintiff’s alleged disability onset date, through October 24, 2014, the date of 24 the administrative law judge’s (“ALJ”) decision. (ECF No. 19.) The Commissioner opposed 25 plaintiff’s motion and filed a cross-motion for summary judgment. (ECF No. 20.) No optional 26 27 28 1 This action was referred to the undersigned pursuant to Local Rule 302(c)(15), and both parties voluntarily consented to proceed before a United States Magistrate Judge for all purposes. (ECF Nos. 8, 9, 12.) 1 1 reply brief was filed. 2 After carefully considering the record and the parties’ briefing, the court DENIES 3 plaintiff’s motion for summary judgment, GRANTS the Commissioner’s cross-motion for 4 summary judgment, and AFFIRMS the Commissioner’s final decision. 5 I. BACKGROUND 6 Plaintiff was born on May 3, 1966; completed 14 years of education and obtained an 7 Associate’s Degree in Criminal Justice; can communicate in English; and previously worked as 8 an automotive technician. (Administrative Transcript (“AT”) 35, 50-51.)2 On July 30, 2012, 9 plaintiff applied for DIB, alleging that his disability began on February 15, 2009. Additionally, 10 plaintiff filed for SSI on August 21, 2013, again alleging disability beginning on February 15, 11 2009. Plaintiff claimed that he was disabled due to degenerative disc disease, carpal tunnel, 12 depression, trouble sleeping, asthma, breathing problems, hypertension, and arthritis. (AT 25, 27, 13 209.) After plaintiff’s application was denied initially and on reconsideration, an ALJ conducted 14 a hearing on May 6, 2014. (AT 44-72.) The ALJ subsequently issued a decision dated October 15 24, 2014, determining that plaintiff had not been under a disability, as defined in the Act, from 16 February 15, 2009, plaintiff’s alleged disability onset date, through the date of the ALJ’s decision. 17 (AT 22-43.) The ALJ’s decision became the final decision of the Commissioner when the 18 Appeals Council denied plaintiff’s request for review on April 20, 2016. (AT 1-7.) Plaintiff 19 subsequently filed this action on June 23, 2016, to obtain judicial review of the Commissioner’s 20 final decision. (ECF No. 1.) 21 II. 22 ISSUES PRESENTED On appeal, plaintiff raises the following issues: (1) whether the ALJ failed to properly 23 account for plaintiff’s mental impairments; and (2) whether the ALJ improperly rejected the 24 opinion of plaintiff’s treating physician, Dr. Sultan.3 25 2 26 27 28 Because the parties are familiar with the factual background of this case, including plaintiff’s medical and mental health history, the court does not exhaustively relate those facts in this order. The facts related to plaintiff’s impairments and treatment will be addressed insofar as they are relevant to the issues presented by the parties’ respective motions. 3 The third issue identified in plaintiff’s brief concerns the requested remedy for the alleged ALJ 2 1 III. 2 LEGAL STANDARD The court reviews the Commissioner’s decision to determine whether (1) it is based on 3 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 4 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 5 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 6 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 7 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 8 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 9 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 10 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The 11 court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational 12 interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 13 IV. 14 DISCUSSION Summary of the ALJ’s Findings 15 The ALJ evaluated plaintiff’s entitlement to DIB and SSI pursuant to the Commissioner’s 16 standard five-step analytical framework.4 As an initial matter, the ALJ determined that plaintiff 17 errors. 18 4 19 20 21 22 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program. 42 U.S.C. §§ 401 et seq. Supplemental Security Income is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Both provisions define disability, in part, as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 14042 (1987). The following summarizes the sequential evaluation: 23 24 25 26 27 28 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. 3 1 met the insured status requirements of the Act for purposes of DIB through June 30, 2014. (AT 2 27.) At the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful 3 activity since February 15, 2009, his alleged disability onset date. (Id.) At step two, the ALJ 4 found that plaintiff had the following severe impairments: mild degenerative disc disease of the 5 thoracic spine, moderate carpal tunnel syndrome of the left wrist, mild carpal tunnel syndrome of 6 the right wrist, mild degenerative joint disease of the right and left shoulders, and obesity. (Id.) 7 However, at step three, the ALJ determined that plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled the severity of an impairment listed in 9 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 30.) 10 Before proceeding to step four, the ALJ assessed plaintiff’s RFC, finding that plaintiff 11 could perform light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b), except that 12 plaintiff could: 13 14 15 16 lift and carry 25 pounds occasionally, 20 pounds frequently, and sit, stand and walk for 6 hours each in an 8-hour day. The claimant can frequently climb, but occasionally climb ladders, ropes, and scaffolds. The claimant can frequently balance, stoop, kneel, crouch, and crawl. The claimant can frequently finger and handle and frequently perform overhead reaching with both arms. 17 (Id.) At step four, the ALJ determined that plaintiff was unable to perform any past relevant 18 work. (AT 34.) However, at step five the ALJ found that, in light of plaintiff’s age, education, 19 work experience, RFC, and the vocational expert’s (“VE”) testimony, there were jobs that existed 20 in significant numbers in the national economy that plaintiff could perform. (AT 35.) 21 22 Step four: Is the claimant capable of performing her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 23 24 25 26 27 Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 28 4 1 Thus, the ALJ concluded that plaintiff had not been under a disability, as defined in the 2 Act, from February 15, 2009, plaintiff’s alleged disability onset date, through the date of the 3 ALJ’s decision on October 24, 2014. (AT 38.) 4 Plaintiff’s Substantive Challenges to the Commissioner’s Determinations 5 6 Whether the ALJ failed to properly account for plaintiff’s mental limitations 7 The ALJ found plaintiff’s mental impairments not severe at step two. Nevertheless, as 8 plaintiff points out, the ALJ also gave great weight to the opinion of Dr. Debra Moore, the 9 consultative psychologist who personally evaluated plaintiff’s mental impairments. (AT 29.) Dr. 10 Moore diagnosed plaintiff with adjustment disorder with depressed mood and alcohol abuse in 11 full remission. (AT 341.) She opined that plaintiff was mildly to moderately impaired in his 12 ability to understand and carry out an extensive variety of technical and/or complex job 13 instructions, as well as his ability to maintain concentration/persistence/attention, due to 14 difficulties focusing because of sleep deprivation. (Id.) However, plaintiff was mildly impaired 15 to unimpaired in his ability to relate and interact with supervisors and co-workers; understand 16 detailed but uncomplicated job instructions; deal with the public; and withstand the stress and 17 pressures associated with day-to-day work activity. (AT 341-42.) Plaintiff’s ability to 18 understand, remember, and carry out simple one or two-step job instructions was unimpaired. 19 (AT 341.) 20 Even assuming, without deciding, that the ALJ technically erred by not finding a severe 21 mental impairment at step two, any such error was harmless. See Curry v. Sullivan, 925 F.2d 22 1127, 1129 (9th Cir.1990) (harmless error analysis applicable in judicial review of social security 23 cases); Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“we may not reverse an ALJ’s 24 decision on account of an error that is harmless”). 25 As an initial matter, the Ninth Circuit has already held that moderate mental limitations do 26 not even require VE testimony. Hoopai v. Astrue, 499 F.3d 1071, 1077 (9th Cir. 2007). In 27 Hoopai, a medical source determined that the claimant was moderately limited in: 28 //// 5 1 2 3 4 his ability to maintain attention and concentration for extended periods; his ability to perform activities within a schedule, maintain regular attendance, and be punctual with customary tolerance; and his ability to complete a normal workday and workweek without interruption from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. 5 6 Id. After the ALJ utilized the grids at step five to determine that the claimant was not disabled, 7 the claimant contended on appeal that the ALJ was required to seek vocational expert testimony 8 regarding the limitations assessed. Id. at 1075. The Ninth Circuit rejected this argument, holding 9 that these moderate limitations were not sufficiently severe to prohibit the ALJ from relying on 10 the grids without the assistance of a vocational expert. Id. at 1077. Thus, the mild to moderate 11 mental limitations assessed by Dr. Moore here do not even require VE testimony. 12 Moreover, in this case, a VE testified and identify several representative occupations, 13 including three light and three sedentary occupations involving unskilled (SVP 2 level) work, that 14 the plaintiff could perform. (AT 36.) Such occupations are plainly not precluded by the mild to 15 moderate limitations assessed by Dr. Moore, because they involve simple, non-complex work and 16 logically have lesser concentration demands. Therefore, even if the ALJ had specifically included 17 such mental limitations in the RFC, it would have been inconsequential to the case outcome. 18 Finally, even though plaintiff makes much of the fact that Dr. Moore assessed a GAF 19 score of 50, suggestive of serious symptoms or impairment, GAF scores are not dispositive in 20 Social Security cases and do not directly correlate to Social Security severity assessments. 21 Trinchere v. Astrue, 2008 WL 4395283, at *6 (C.D. Cal. Sept. 3, 2008). A low GAF score does 22 not alone determine disability, but is a piece of evidence to be considered with the rest of the 23 record. Olds v. Astrue, 2008 WL 339757, at *4 (D. Kan. Feb. 5, 2008). An ALJ is permitted to 24 discredit a GAF score where it is unsupported by the evidence. Clark v. Astrue, 2009 WL 25 542166, at *6 (C.D. Cal. Mar. 4, 2009). Here, the ALJ permissibly gave Dr. Moore’s GAF score 26 little weight, because it is inconsistent with the mild to moderate mental limitations specifically 27 assessed in Dr. Moore’s opinion. 28 Therefore, the court concludes that the ALJ properly accounted for plaintiff’s mental 6 1 impairments, and that any technical error was harmless. 2 3 Whether the ALJ improperly rejected the opinion of plaintiff’s treating physician, Dr. Sultan 4 The weight given to medical opinions depends in part on whether they are proffered by 5 treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 6 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking, 7 a treating physician’s opinion carries more weight than an examining physician’s opinion, and an 8 examining physician’s opinion carries more weight than a non-examining physician’s opinion. 9 Holohan, 246 F.3d at 1202. 10 To evaluate whether an ALJ properly rejected a medical opinion, in addition to 11 considering its source, the court considers whether (1) contradictory opinions are in the record; 12 and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a 13 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 14 F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be 15 rejected for “specific and legitimate” reasons. Id. at 830. While a treating professional’s opinion 16 generally is accorded superior weight, if it is contradicted by a supported examining 17 professional’s opinion (supported by different independent clinical findings), the ALJ may 18 resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes 19 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the 20 contradicted treating physician opinion, Edlund, 253 F.3d at 1157,5 except that the ALJ in any 21 event need not give it any weight if it is conclusory and supported by minimal clinical findings. 22 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory, minimally 23 supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non- 24 examining professional, by itself, is insufficient to reject the opinion of a treating or examining 25 professional. Lester, 81 F.3d at 831. 26 5 27 The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3) nature and extent of the treatment relationship; (4) supportability of diagnosis; (5) consistency; and (6) specialization. 20 C.F.R. § 404.1527. 28 7 1 On July 3, 2012, plaintiff’s treating physician, Dr. Sultan A. Sultan, provided a four-page 2 physical capacities evaluation essentially finding plaintiff completely disabled. (AT 307-10.) 3 Based on diagnoses of discogenic disease, carpal tunnel syndrome, and severe degenerative joint 4 disease, Dr. Sultan opined, inter alia, that plaintiff could only sit for two hours out of an eight 5 hour workday and only stand and walk for one hour each. (AT 307, 310.) Furthermore, Dr. 6 Sultan noted that the plaintiff could only occasionally lift up to 5 pounds, and could only use his 7 hands for grasping, pushing, pulling, and fine manipulation for between 5 and 10% of an eight 8 hour workday. (AT 308.) Because Dr. Sultan’s opinion was contradicted by other medical 9 opinions in the record, the ALJ was required to provide specific and legitimate reasons for 10 discounting Dr. Sultan’s opinion. For the reasons discussed below, the court finds that the ALJ 11 properly discharged that duty. 12 As an initial matter, the ALJ reasonably gave Dr. Sultan’s July 3, 2012 opinion little 13 weight, because it is conclusory, minimally supported, and “without substantial support from 14 objective clinical or diagnostic findings….” (AT 34.) Indeed, the March 27, 2012 X-rays 15 requested by Dr. Sultan showed no significant degenerative changes in plaintiff’s lumbar spine, 16 and only mild multilevel degenerative disc disease in plaintiff’s thoracic spine. (AT 311-12.) 17 Furthermore, a nerve conduction study performed on June 13, 2012, revealed only moderate 18 carpal tunnel syndrome on the left and mild carpal tunnel syndrome on the right. (AT 313-17.) 19 Dr. Sultan’s opinion entirely fails to explain why such mild to moderate clinical findings would 20 render plaintiff completely disabled. 21 The ALJ also substantially relied on the opinion of consultative examiner, Dr. Jay 22 Keystone, who personally examined plaintiff on January 16, 2013. (AT 33-34, 345-50.) Dr. 23 Keystone noted plaintiff’s complaints related to his back, hands, asthma, hypertension, and 24 obesity, but also observed that plaintiff walked independently into the examination room with a 25 normal gait. (AT 347-49.) Upon examination, a straight leg raising test was negative bilaterally; 26 plaintiff had normal motor strength/muscle bulk in all extremities; and a sensory examination and 27 reflexes were normal in all extremities. (AT 347-48.) Dr. Keystone found no evidence of 28 deformities, swelling, spasms, or tenderness on palpation or percussion of plaintiff’s joints or 8 1 extremities. (AT 348.) Dr. Keystone diagnosed plaintiff with probable mild osteoarthritis 2 resulting in plaintiff’s back and finger joint pain, mild bronchial asthma, and hypertension, but 3 opined that plaintiff had no physical functional limitations beyond pulmonary precautions due to 4 plaintiff’s asthma. (AT 349.) Because Dr. Keystone personally examined plaintiff and made 5 independent clinical findings, his opinion constitutes substantial evidence on which the ALJ was 6 entitled to rely. 7 Furthermore, the ALJ properly relied on the opinion of non-examining state agency 8 physician Dr. Jaituni, who reviewed plaintiff’s records on February 1, 2013, and opined that 9 plaintiff did not have a severe physical impairment. (AT 34, 78.) See Tonapetyan v. Halter, 242 10 F.3d 1144, 1149 (9th Cir. 2001) (“Although the contrary opinion of a non-examining medical 11 expert does not alone constitute a specific, legitimate reason for rejecting a treating or examining 12 physician’s opinion, it may constitute substantial evidence when it is consistent with other 13 independent evidence in the record.”). 14 Finally, although Dr. Sultan indicated that plaintiff’s symptoms and medications 15 frequently interfered with the attention and concentration required to perform even simple work- 16 related tasks (AT 307), plaintiff himself indicated that he could pay attention for “a long time,” 17 finished what he started, and could follow written and spoken instructions “very well.” (AT 255.) 18 Thus, as the ALJ noted, Dr. Sultan’s opinion clearly overstated plaintiff’s limitations, reducing 19 the persuasiveness of the opinion. (AT 34.) 20 Therefore, the court finds that the ALJ provided several specific and legitimate reasons for 21 discounting Dr. Sultan’s opinion. 22 V. 23 CONCLUSION For the foregoing reasons, the court concludes that the ALJ’s decision was free from 24 prejudicial error and supported by substantial evidence in the record as a whole. Accordingly, IT 25 IS HEREBY ORDERED that: 26 1. Plaintiff’s motion for summary judgment (ECF No. 19) is DENIED. 27 2. The Commissioner’s cross-motion for summary judgment (ECF No. 20) is 28 GRANTED. 9 1 2 3. The final decision of the Commissioner is AFFIRMED, and judgment is entered for the Commissioner. 3 4. 4 IT IS SO ORDERED. 5 The Clerk of Court shall close this case. Dated: June 20, 2017 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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